The Queen v. Law Chun-wo

CACC000686/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ. A

Date: 25th October 1983

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JUDGMENT

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Silke, J.A.:

1. The applicant seeks leave to appeal against his conviction and sentence. We deal at this point with his application in respect of conviction.

2. The conviction was for the offence of robbery. It took place in the early morning of the 27th September 1982 in what it is euphemistically called a "beauty parlour". Three men entered, apparently needing massage service. One was being provided with it when he rose from his couch and took from an altar in the premises a knife which was used for the cutting of ginger. The Head Usher of the premises was threatened with that knife and there was a shout of "Robbery". The Head Usher went on that the girls were then forced into a rest room and two of the three men forced him into a toilet.

3. It has been suggested by Mr. van Buuren, who appears for the applicant in this Court, that there is some confusion in the victim's evidence as to what happened and as to the sequence of the events.

4. The victim did say:

"I was threatened in toilet with knife and $3,000 taken off from one (sic)."

and

"Inside the Saloon, the toilet was illuminated by 100 watt bulb. The man with knife faced me and I could recognise his face."

5. The confusion suggested by Mr. van Buuren is that there is no direct evidence as to which of the three men was actually in the toilet nor which was the man with the knife.

6. He points out that when, on the 10th November 1982, the Head Usher saw a man and had him apprehended as one of the robbers - the man having run away upon his shout -he identified him as the man with the knife:

7. "the man who pointed the knife at me."

8. It seems clear, however, from the evidence of the prosecution that there was but one knife and but one man with it. It was the evidence of the Head Usher that that man was the applicant.

9. The grounds of the appeal relate to the necessity for a trial judge in the District Court to spell out in detail his knowledge of the decision on Turnbull ⁽¹⁾.Speaking for myself, I am not at all sure that the strictures laid down in Turnbull ⁽¹⁾ apply to a case of this kind for Turnbull ⁽¹⁾ was purely a matter of a fleeting glimpse or a sight under difficult circumstances. Here there was considerable opportunity for the Head Usher to see the robbers and, in particular, the man with the knife, even if the circumstances were such as to place the witness under strain.

10. But, that having been said, it is correct that the trial judge did not go into the full details in his Reasons for Verdict of that which is said in Turnbull ⁽¹⁾ - such as the convinced witness may still be a mistaken one.

11. He did, however, clearly have the matter of identification in mind and he was fully aware of the fact that identification was a crucial issue in the case. He did consider the time element, he did consider the lighting element and he did consider the general nature of the circumstances of the identification made by the Head Usher.

12. The second ground of appeal relates to that which I might call the "gold teeth" point. In cross-examination there was a reference by the Head Usher to a distinguishing feature of the man with the knife: that "he had gold teeth in his mouth". He said that he told this to the police at the time he gave a description - his statement having been put to him containing that description. It is clear that the point was certainly not recorded if it were said.

13. The third ground relates to the accent of the applicant. All these, of course, are really dealing with, and only with, identification. The "accent" point arose because it was suggested that the applicant spoke with a Hakka accent and no other. This, again, was a point raised in cross-examination. The matter arose thus:

14. In his Reasons for Verdict, the trial judge recited the evidence given by the defendant at trial as to his mother tongue being Hakka: that he mostly spoke Hakka and, when he used Cantonese, spoke with a Hakka accent. In cross-examination, he said that he did come from Tung Tau County.

15. It matters not whether it is "Tung Tau" or "Tung Koon", it may well be a typographical error - the characters themselves are not recorded - in the transliteration. The issue was whether he spoke with a Hakka accent or with another accent, an accent recognizable by the Head Usher. The trial judge clearly had this aspect in mind.

16. It is Mr. van Buuren's main contention as a result of these three matters that the conviction is unsafe and unsatisfactory. This we do not accept.

17. We think that it was open to the trial judge to find that the evidence of the Head Usher was good evidence - that the identification was a good identification - he was not in error in finding as he did.

18. The application for leave to appeal against conviction is therefore refused.

19. The application in respect of sentence was abandoned with leave.

(1) [1976] 3 A.E.R. 549

Representation:

Brian van Buuren, Esq. instructed by Messrs. Laurence Pang & Co. for Applicant.

J.P. McNamara, Esq. for Crown/Respondent.